Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-01
TIE SUPREME COURT.
Decisions Rendered at the Austin Sitting
YESTERDAY

OOuHCy' oPAnloh ny w 1IICJ W u LIZ
decision on the motion in this case set
ties question that is very often brough
before the Supreme court.-Rep.
The appellees move to dismiss this ap
peal, because the appeal bond is not il
double the amount of the costs
of this court and the court be
low. The bond is $75, and is con-
ditloned for the payment of ell costs. Il
was approved and filed by the district
clerk and the motion is based on the fac
that the bill of costs below is $4015
We have frequently held that the, statute
requiring the appeal bond to- be double
the amount of costs does not require tfai
it shall be double the costs below, bui
double the probable amount of such
costs to be fved by the clerk, and when
he has fixed the costs we look no further
The law leaves the matter to the dissertation
of the clerk and there must be 81 clear
case of abuse of this discretion before we
will revise his action. The best evidence
that the bond is all right is the cierS IS
statement to that effect; when there is no
such statement his approving the bond
causes the presumption that the bond is
sufficient This has been the ruling be-
fore. We think the clerk fixed the bond
in this case at $75 because he thought the
costs would be $3.50.
J, w. K. Moore and wife vs.. J. D.
Whitcomb from Limestone county;
opinion by Gaines, A. j. The question
in this case is as to the true
north boundary of the Rutledge league
OF land in Limestone county.
| Appellants claim the north half of that
survey and appellee acting on the theory
that the land in controversy was not a
| part of that survey, but unapprOpriated
public domain, filed acertiticate on it and
had it surveyed, but the commissioners
would not issue patent, because the
land appeared to be embraced in the
Rutledge survey, and this suit was
brought to determine the question. APP
pellees claim that the true north
boundary line of the survey is
some 1922 vsras south of the
north line claimed by appellants.
The field notes of the Rutledge grant call
for two mesquite trees as marking the
northwest corner, and the evidence ad-
duced by appellees to show the lines
calls for mesquite tree with surveyors
marks on it, and the stump of another,
corresponding with the field notes, and
the Poke survey on the west calls also
for these trees at its northeast corner.
Again, it is shown that the line called for
by appellants as the true north line con-
tfiCts with the junior TrainoTy survey on
the north, whereas the line run as called
for by appellee causes no conflict.
Appellants. however, claim that the
line called for by appellees runs through
timber land, but no marks were found on
the trees, but the field notes call for sew
eral trees nearly two feet in diameter,
thus showing that the line WAS run |
through heavy timber, while the line |
claimed by appellants terminates in |
prairie on either end. We think the evil
dence adduced by appellees proved that
their line was the true one.
The objection that the act of July IA,
1879, withdrew all vacant land from lOca-
ton, is not good, because it only applied
to tracts of $40 acres or less, and this is
737 acres, and it did not apply to Lime
stone county. The judgment is affirmed.
Fort Worth and Denver City Railway
VS.. J. Y. Hogsett, from Wise
county. Opinion by Willie, G. j. APP
DeIlee brought this suit to recover dam
ages for the burning of mis- grass and per-
nanent injury to mis- land caused by neg
igence of appellant in operating its
engines and allowing Combustible to re-
main upon its right of way. Appellee
recovered judgment for $1,000, and this
appeal is taken. There are great many
of error in this case, but
lone Of them were well taken.
The appellants claim that the court
.rred in allowing one witness to be asked {
o testify as to the market value of the land 9
or pasturage and hay purposes, because I
t restricted the witness to special pur- Z
,Oses. This could not iDjure appellant,
because if that was the most valuable )
purpose for which the land could be used !
ppeIlee was entitled to have that vaIua- 7
ion, if there were any purposes more
aluable then appellant was not injured
" the question. The objection that
Witness testimony was merely an opinion
S not 3 good one. Appellant objected
0 appellee testifying as to how much less
he land was worth Immediately after the
ire than it was before. This was
ot improper evidence and was in fact ,
he only way to get at the measure of
amages under former decisions of this
curt. Appellants objected to the charge s
I the court, that while railroad COM {
any had right to run trains, etc 1T had /
o right to scatter sparks along its line of I
road in such manner as to cause IN q
ecessary danger, and if they do so and I
roper to is destroyed it is liable to the
wner for negligence. This charge is in
ccordance with the law. See 81 Tex, +
81. /
The subsequent charge allows the rail- &
bad a chance to escape if they
bowed that the destruction
as not caused by negligence. +
he charge that if appellant allowed q
ny grass and weeds or other combusti- n
lie matter to collect along It's right of v
ay it would be negligence, is precisely
le rule laid down in numerous cases. g.
he court, however, requires that the T
,mbustiOle material must catch fire fl
I'd communicate it to appellants grass, o
us qualified it was an entirely proper f
large. The fifteenth assignment of n
ror was that the court charged that if NJ
PENDANTS engine set fire to plaintiffs 81
ass, that the jury find for the K,
aintiff. We do not so construe the II
arge, as the charge says if the fire was b,
used by csrelessness and negligence, in
ey should find, etc. The judgment is OF
irmed. W
E and S. McElroy VS.. Joseph Magofin,
om Ell PasO county; opinion by Willie, be
J. This is case as to the acquiring W
d abandoning of homestead.
There are two questions. First, did w
IS. McElroy ever acquire a right of II
mestead in the land? Second, if she eli
l was that interest lost by abandon in
INT? If the first question is answered m
the negative, the second one is of no ST.
portance. II the second one is no
swered in the affirmative, the first one fri
of no inheritance There iG soma ! wi